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STATE CLAIMS NORTH- 
WEST TERRITORY 



ADDRESS 

OF 

HON. WILLIAM E. CHILTON 

OF WEST VIRGINIA 

IN THE SENATE OF THE UNITED STATES 
ON APRIL 10, 1912 

AND 

ADDRESS 

OF 

GOV. CLAUDE A. SWANSON 

OF VIRGINIA 

ON " VIRGINIA DAY " 

DELIVERED AT THE JAMESTOWN EXPOSITION 

JUNE 12. 1907 



PRESENTED BY MR. SWANSON 

August 24, 1912.— Ordered to be printed 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1912 



^ 



2^ 



I 






AUP 31 '91? 



4 






\ 



STATE CLAIMS FOR NORTHWEST TERRITORY. 



Speech of Hon. William E. Chilton, of West Virginia, in the 
Senate of the United States, Wednesday, April 10, 1912, 

On the bill (S. 6247) to provide for the bringing of suits against the United States by 
Virginia, West Virginia, Kentucky, Delaware, Pennsylvania, New Jersey, Georgia, 
Connecticut, Massachusetts, Maryland, South Carolina, New Hampshire, New York, 
North Carolina, and Rhode Island. 

Mr. Chilton said : 

Mr. President, I introduced, a few moments ago, a bill giving juris- 
diction to the Court of Claims in certain matters affecting the thirteen 
original States as to claims which the ])e()ple of Virginia and West 
Virginia believe they have against the Federal Government. I do 
not desire to take much of the time of the Senate for two reasons, 
first, because this is not the time to discuss fully the provisions of the 
bill and to state the reasons why the Senate should pass it; and I have 
the additional reason that the very attractive subject of the Senator 
from Washington [Mr. Jones] and his well-known ability to handle 
that or any other subject so as to both entertain and enlighten the 
Senate constrain me to wish that he should have as much time as 
possible during the day. 

The bill which I haA'e introduced has in mind a condition in this 
country more than a hundred years ago, and it is what might be 
termed a smasher of idols. Confessedly, the bill and what it purports 
to do will change what is the common understanding of history. 

It has always l)een supposed that the State of Virginia in 1784 
conveyed to the Federal Government what is known as the North- 
west Territory, without reserve and without condition, and that the 
Federal Goverimient took title to that propert}' as an individual 
would do, with the absolute right to dispose of the subject matter and 
also with the right to appropriate the proceeds of the sales. There 
never was a greater error committed by history, and it is my purpose 
now simply to review briefly the history of this grant and to put in 
the Recoril some of the papers and public documents bearing upon 
this question so that the proper committee, in the consideration of 
this bill, of so much importance to the 13 original States, and espe- 
cially to my State, and of so much importance to the Government, 
should start o,'f in the investigation that will be made of it in posses- 
sion of the facts and with a general understanding of the contention 
of the States of West Virginia and Virginia. 

It is well known that at the time the original Confederation or 
Federal alliance of the States was made one of them, the State of 
Maryland, declined to become a party to that compact. She made 



4 STATE CLAIMS FOE NOKTHWEST TEERITORY. 

remonstrances to what was then the Federal organization against the 
hirge boundnries of Land held b}" New York. L'onnecticut, Geoi-gia, 
Virginia, and possibly other States. She made it known to the Con- 
tinental CVmgress that she woidd decline to become a party to the 
original Federal compact until such time as that question should 
be settled, claiming that it would give the States having the large 
boundaries of western lanels a ])ower anel an influence in the Federal 
organization inconsistent with the })ositien which Marylanel, without 
a public domain, woulel occupy in that compact. 

I want to put the remonstrance of the State of Maryland into the 
Record, and I ask permission, without reading it, that that document 
may be inserteel as a part of my remarks. 

The Vice President. Without objection, permission is granted. 

The matter referreel to is as follows: 

ACTION OF MARYLAND. 

On the 21st of May, 1779, the Delegates from Maryland laid before Congress the 
•following instructions received by them: Instructions of the General Assembly of 
Maryland to George Plater, William Paca, William Carmichael, John Henry, James 
P'orbes, and Daniel of St. Thomas Jenifer, Esqs. 

Gentlemen: Having conferred upon you a trust of the highest nature, it is evident 
we place great confidence in your integrity, abilities, and zeal to promote the general 
welfare of the United States, and the particular interest of this State where the latter is 
not incompatible with the former; but to add greater weight to yoiu- proceedings in 
Congress and take away all suspicion that the opinions you there deliver, and the votes 
you give, may be the mere opinions of individuals and not resulting from your knowl- 
edge of the sense and deliberate judgment of the State you represent, we think it oui- 
duty to instruct as followeth on the subject of the Confederation — a subject in which, 
unfortunately, a supposed difference of interest has produced an almost equal division 
of sentiments among the several States composing the Union. We say a supposed 
difference of interests; for if local attachments and prejudices and the avarice and 
ambition of individuals would give way to the dictates of a sound policy, founded on 
the principles of justice — and no other policy but what is founded on those immutable 
principles deserves to be called sound — we flatter ourselves this apparent diversity of 
interest would soon vanish, and all the States would confederate on terms mutually 
advantageous to all, for they would then perceive that no other confederation than one 
so formed can be lasting. Although the pressure of immediate calamities, the dread 
of their continuance from the appearance of disunion, and some other peculiar ciiTum- 
stances may have induced some States to accede to the present Confederation, contrary 
to their own interests and judgments, it requires no great share of foresight to predict 
that when those causes cease to operate the States which have thus acceded to the 
Confederation will consider it as no longer binding and will eagerly embrace the first 
occasion of asserting their just rights and securing their independence. Is it possible 
that those States who are ambitiously grasping at territories to which, in our judgment, 
they have not the least shadow of exclusive right, will use with greater moderation the 
increase of wealth and power derived frtmi those territories, when acquu'ed, than what 
they have displayed in their endeavors to acquire them? We think not. We are con- 
vinced the same spirit which hath prompted them to insist on a claim so extravagant, 
so repugnant to every principle of justice, so incompatible with the general welfare of 
all the States, will urge them on to add oppression to injustice. If they should not be 
incited by a superiority of wealth and strength to oppress by open force their less 
wealthy and less powerful neighbors, yet depopulation, and consequently the impov- 
erishment of those States, will necessarily follow, which, by an unfair construction of 
the Confederation, may be stripped of a common interest and the common benefits 
derivable from the western country. Suppose, for instance, Virginia indisputably 
possessed of the extensive and fertile country to which she has set up a claim. What 
would be the probable consequences to Maryland of such an undisturbed and undis- 
puted possession? They can not escape the least discerning. 

Virginia, by selling on the most moderate terms a small proportion of the lands in 
question.- would draw into her treasury vast sums of money, and. in proportion to 
the sums arising from such sales, would be enabled to lessen her taxes. Lands com- 
paratively cheap and taxes comparatively low with the lands and taxes of an adja- 
cent State would quickly drain the State thus disadvantageously circumstanced 



STATE CLAIMS FOB NORTHWEST TERRITORY. 5 

of i1,s most useful inhal)itants. Its wealth and its consequence in the scale of the con- 
federated States would sink, of course. A claim so injurious to more than one-half 
if not the whole of the United States ought to be sup])orted by the clearest evidence 
of the right. Yet what evidences of that right have l)een produced? What argu- 
ments alleged in su])])ort either of the evidence or the right? None that we have 
heard of deserving a serious rcl'utation. 

It has been said that some of the delegates of a neighboring State have declared 
their o])inioii of the im])racticability of governing the extensive domain claimed by 
that State. Hence also the necessity was admitted of dividing its territory and erect- 
ing a new State under the auspices and direction of the elder, from whom, no doubt, 
it would receive its form of government, to whom it would be bound l)y some alliance 
or confederacy, and by whose councils it would l:e influenced. Such a measure, if 
ever attem])ted, would certamly be o])posed by the other States as inconsistent with 
the letter and spirit of the ])roposed confederation. Should it take ])lace by establish- 
ing a subconfederacy. im])erium in imperio, the State possessed of this extensive 
dominion must then either submit to all the inconveniences of an overgrown and 
unwieldly government or suffer the authority of Congress to inter]:)ose at a future 
time and to lo]) off a part of its territory, to lie erected into a new and free State and ad- 
mitted into a confederation on such conditions as shall be settled by nine States. 
If it is necessary for the happiness and tranquillity of a State thus overgrown that 
Congress should hereafter interfere and divide its territory, why is the claim to that 
territory now made and so pertinaciously insisted on? \Ye can suggest to ourselves 
but two motives — either the declaration of relinquishing at some future period a 
proportion of the country now contended for was made to lull suspicion asleep and 
to cover the designs of a secret ambition, or, if the thought was seriously entertained, 
the lands are now claimed to reap an immediate profit from the sale. We are con- 
vinced policy and justice require that a country unsettled at the commencement of 
this war, claimed by the British Crown, and ceded to it by the treaty of Paris, if 
wrested from the common enemy liy the Idood and the treasure of the 13 States, should 
be considered as a common property, su.liject to l-e parceled out by Congress into free, 
convenient, and independent governments, in such manner and at such times as the 
wisdom of that assemlily shall hereafter direct. 

Thus convinced, we should betray the trust reposed in us by our constituents were 
we to authorize you to ratify on their behalf the Confederation, unless it be further 
explained. We have coolly and dispassionately considered the subject; we have 
weighed probable inconveniences and hardships against the sacrifice of just and 
essential rights; and do instruct you not to agree to the Confederation unless an article 
or articles be added thereto in conformity with our declaration. Should we succeed 
in obtaining such article or articles, then you are hereby fully empowered to accede 
to the Confederation. 

That these, our sentiments respecting our Confederation, may be more pu'hlicly 
known and more explicitly and concisely declared, we have drawn up the annexed 
declaration, which we instruct you to lay before Congress, to have printed, and to 
deliver to each of the Delegates of the other States in Congress assembled copies thereof 
signed by yourselves or by such of you as may be present at the time of delivery, to 
the intent and purpose that the copies aforesaid may be communicated to our brethren 
of the United States and the contents of the said declaration taken into their sei'ious 
and candid consideration. 

Also we desire and instruct you to move at the proper time that these instructions 
be read to Congress by their Secretary and entered on the Journals of Congress. 

We have spoken with freedom, as becomes freemen, and we sincerely wish that 
these, our representations, may make such an impression on that assembly as to 
induce them to make such addition to the Articles of Confederation as may bring about 
a permanent Union. 

A true copy from the proceedings of December 15, 1778. 

Test: 

T. DUCKETT, 

Clerk of the House of Delegates. 

Mr. Chilton. West Virginia is prepared to show at the proper time 
that the above protest of Maryhind against Virginia's title to the 
Northwest Territory was not based upon any substantial defect in 
Virginia's title nor upon any fact unknown to the country at that 
time. But whatever may have been Virginia's title, it proved to be 
ample to secure every foot of the Territory to the Federal Govern- 
ment. It need not he argued here tluit a trustee can not sell the 



6 STATE CLAIMS FOE NORTHWEST TERRITORY. 

land iind then refuse to account for the proceeds upon the ground 
of a defective title. Here the trustee disposed of the land, and her 
grantees are in undisputed possession. 

The Continental Congress fully appreciated the gravity of the 
situation and its helplessness to induce Maryland to come into the 
Confederation. The Articles of Confederation left to the States 
unconditional control of their western lands. The power of the 
Congress respecting these lands was limited to the settlement of 
boundaries in dispute between States. (Art. IX.) Therefore Vir- 
ginia, as to her territory, was sovereign and independent, and there 
was no power that could compel her to part with her title except 
upon her own terms. The Congress referred the above instructions 
of Maryland to her delegates to a committee, which made a report, 
and on the 6th day of September, 1780, the following proceedings 
were enacted : 

In Congress of the Confederation, 

Wednesday, Septen^ber 6, 1780. 

Congress took into consideration the report of the committee to whom were referred 
the instructions of the General Assembly of Maryland to their Delegates in Congress 
respecting the Articles of Confederation and the declaration therein referred to, the 
act of the Legislature of New York on the same subject, and the remonstrance of the 
General Assembly of Virginia, which report was agreed to and is in the words following: 

"That, having duly considered the several matters to them submitted, they con- 
sider it unnecessary to examine into the merits or policy of the instructions or declara- 
tions of the General Assembly of Maryland or of the remonstrance of the General 
Assembly of Virginia, as they involve questions, a discussion of which was declined, 
on mature consideration, when the Articles of Confederation were debated; nor, in 
the opinion of the committee, can such questions be now revived with any prospect 
of conciliation; that it appears more advisable to press upon those States which can 
remove the embarrassments respecting the western country a liberal surrender of a 
portion of their territorial claims, since they can not be preserved entire without 
endangering the stability of the general Confederacy; to remind them how indis- 
pensably necessary it is to establish the Federal Union on a fixed and permanent basis 
and on principles acceptable to all its members; how essential to public credit and 
confidence, to the support of our Army, to the vigor of our councils and success of our 
measures, to our tranquillity at home, our reputation abroad, to our very existence as 
a free, sovereign, and independent people; that they are fully persuaded the wisdom 
of the respective legislatures will lead them to a full and impartial consideration of a 
subject so interesting to the United States and so necessary to the happy establishment 
of the Federal ITnion; that they are confirmed in these expectations by a review of 
the before-mentioned act of the Legislature of New York, submitted to their considera- 
tion; that this act is expressly calculated to accelerate the Federal alliance, by remov- 
ing, as far as depends on that State, the impediment arising from the western country, 
and for that purpose to yield up a portion of territorial claim for the general benefit: 
Whereupon 

"Resolved, That copies of the several papers referred to the committee be transmitted, 
with a copy of the report, to the legislatures of the several States, and that it be earn- 
estly recommended to those States who have claims to the western country to pass 
such laws and give their Delegates in Congress such powers as may effectually remove 
the only obstacle to a final ratification of the Articles of Confederation; and that the 
Legislature of Maryland l^e earnestly requested to authorize the Delegates in Congress 
to subscribe the said article." 



Tuesday, October 10, 1780. 
Resolved, That the unappropriated lands that may be ceded or relinquished to the 
United States, by any particular State, pursuant to the recommendation of Congress 
of the 6th day of September last, shall be disposed of for the common benefit of the 
United States, and be settled and formed into distinct republican States, which shall 
become members of the Union, and have the same rights of sovereignty, freedom, 
and independence as the other States; that each State which shall be so formed shall 
contain a suitable extent of territory, not less than 100 nor more than 150 miles square, 



STATE CLAIMS FOR NORTHWEST TERRITORY. 7 

or as near thereto as circumstances will admit; that the necessary and reasonable 
expenses which any particular State shall have incuned since the commencement 
of the present war in subduing any Jiritish ])osts, or in maintaining forts or garrisons 
within and for the defense, or in acquiring any part of the ten-itory that may be ceded 
or relin((uished to the United States shall be reimbursed. 

That the said lands shall be granted rn- settled at such times and under such regu- 
latit)ns as sliall hereafter be agreed on by the United States in Congress assembled, 
or any nine or more of them. 

Shortly thcreal'ter tho State of Virginia passed a resolution of her 
lejiislature suggesting a ])lan inider which she would convey this 
northwest domain to the then Federal Alliance. That was ])asscd 
in January, 1781, and amounted to a proposition to the Continental 
Congress. In two months thereafter, to wit, in March, 1781, Mary- 
land ratified the Federal compact and became a part of the first 
P^ederal Government formed upon this continent, and thereby the 
way was paved to form what is now the United States Government 
under our present Constitution. 

But, Mr. President, the cession that was made by Virginia, under 
the grant of authority to her commissioners to make that cession, 
was not an absolute one. Mrginia made certain reservations in her 
deed of cession, and to those ])articularly I waiit to call the attention 
of the Senate. 

The d^ed mad^ by Viririnia was in strict conformity to the act of its 
Legislature authorizing it to be made. The legislative act is, inde^d, 
recit?d in the deed. The grant, it will be seen, is to "the said vStates, 
Virginia inclusive," and "for the uses and purposes and on the condi- 
tions of the said recited act." 

On the 20th day of October, 1783, Virginia, through her lec:islativ8 
branch, autliorized the c?ssion of thc> Northwest Territory to be made, 
and on March 1 , 1784, her del.^^ates in th? Continental Congress pre- 
sented the deed of c?ssion, and the f illowim; proceedings took place: 

PROCEEDINGS OF CONGRESS. 

March 1, 1784, Virginia, through her delegates in the Continental Congress, Thomas 
Jefferson, Samuel Hardy, Arthur Lee, and James Monroe, completed the act of ces- 
sion, the following proceedings being had in Congress: 

On motion of Mr. Howell, of Rhode Island, the following resolution was adopted: 

Whereas the General Assembly of Virginia, at their session commencing on the 
20tli day of October, 1783, passed an act to authorize their Delegates in Congress to 
convey to the United States, in Congress assembled, all the right of that Common- 
wealth to the territory northwestward of the River Ohio; and 

Whereas the Delegates of the said Commonwealth have presented to Congress the 
form of a deed proposed to be executed pursuant to the said act, in the words following: 

''To all who shall see these presents, we, Thomas Jederson, Samuel Hardy, Arthur 
Lee, and James Monroe, the underwritten Delegates for the Commonwealth of Vir- 
ginia, in the Congress of the LTniled States of America, send greeting: 

"Whereas the General Assembly of the Commonwealth of Virginia, at their ses- 
sions begun on the 20th day of October, 1783, passed an act entitled 'An act to author- 
ize the Delegates of this State in Congress to convey to the United States, in Congress 
assembled, all the right of this Commonwealth to the territory northwestward of the 
River Ohio,' in these words following, to wit: 

" '^^'hereas the Congress of the Ignited States did, by their act of the 6th day of 
September, in the year 1780, recommend to the several States in the I-nion having 
claims to waste and unappropriated lands in the western country a liberal cession 
to the United States of a portion of their respective claims for the common benefit 
of the Union ; and 

" 'Whereas this Commonwealth did, on the 2d day of January, in the year 1781, 
yield to the Congress of the United States, for the benefit of said States, all right, 
title, and claim which the said Commonwealth had to the territory northwest of the 
River Ohio, subject to the conditions annexed to the said act of cession; and 



b STATE CLAIMS FOR NORTHWEST TERRITORY. 

" 'Whereas the United States in Congress assembled have, by their act of the 
]3th of September hist, stipulated the terms on which they agree to accept the cession 
of this State, should tlie legislature a{)prove theieof, which terms, although they do 
not come fully up to the propositions of this Commonwealth, are conceived, on the 
whole, to approarh so nearly to them as to induce this Stale to accept thereof, in full 
confidence, that Congi-ess will, in justice to this State for the liberal cession she has 
made, earnestly press upon the other States claiming large tracts of waste and unculti- 
vated territory the propriety of making cessions equally liberal for the common benefit 
and support of the Union: 

" 'Be it enacted by the general assembly, That it shall and may be lawful for the dele- 
gates of this State to the Congress of the United States, or such of them as shall be 
assembled in Congress, and the said delegates or such of them so assembled are hereby 
fully authorized and empowered, for and on behalf of this State, by proper deeds or 
instrriment in writing, under their hands and seals, to convey, transfer, assign, and 
make oA^er unto the United States in Congress assembled, for the benefit of said States, 
all right, title, and claim, as well of .soil as jurisdiction, which this Commonwealth hath 
to the territory or tract of country within the limits of the Virginia charter, situate, 
lying, and being to the northwest of the River Ohio, subject to the terms and condi- 
tions contained in tlie before-recited act of Congress of tlie 13th day of September last; 
that is to say, upon condition that the territory so ceded shall be laid out and formed 
into States, containing a suitable extent of territory, not less than 100 nor more than 
150 miles square, or as near thereto as circumstances will admit: and that the States 
so formed shall be distinct republican States and admitted members of the Federal 
Union, haA'ing the same rights of sovereignty, freedom, and independence as the other 
States. 

" 'That the necessary and reasonable expenses incurred by this State in subduing 
any British posts or in maintaining forts and garrisons within and for the defense, or in 
acquiring any part of, the territory so ceded or relinquished shall be fully reimbursed 
by the United States; and that one commissioner shall be appointed by Congress, one 
by this Commonwealth, and another by those two commissioners, who, or a majority 
of them, shall be authorized and empowered to adjust and liquidate the account of the 
necessary and reasonable expenses incurred by this State which they shall judge to be 
comprised within the intent and meaning of the act of Congress of the 10th of October, 
1780, respecting such expenses. That the French and Canadian inhabitants and other 
settlers of the Kaskaskies, St. Vincents, and the neighboring villages who have pro- 
fessed themselves citizens of Virginia shall have their possessions and titles confirmed 
to them and be protected in the enjoyment of their rights and liberties. That a quan- 
tity not exceeding 150,000 acres of land, promised by this State, shall be allowed and 
granted to the then colonel, now Gen. George Rogers Clark, and to the officers and 
soldiers of his regiment who marched with him when the post of Kaskaskies and St. 
Vincents were reduced, and to the officers and soldiers that have been since incor- 
porated into the said regiment, to be laid off in one tract, the length of which not to 
exceed double the breadth, in such place on the northwest side of the Ohio, as a 
majority of the officers shall choose, and to be afterwards divided among the said officers 
and soldiers in due proportion according to the laws of Virginia. That in case the 
quantity of good land on the southeast side of the Ohio, upon the waters of Cumberland 
River and between the Green River and Tennessee River, which have been reserved 
by law for the Virginia troops, upon continental establishment, should, from the North 
Carolina line bearing in farther upon the Cumberland lands than was expected, prove 
insufficient for their legal bounties, the deficiencies should be made up to the said 
troops in good lands, to be laid off between the rivers Scioto and Little Miami, on the 
northwest side of the river Ohio, in such proportion as have been engaged to them by 
the laws of Virginia. That all the lands within the territory so ceded to the United 
States and not reserved for or appropriated to any of the before-mentioned purposes 
or disposed of in bounties to the officers and soldiers of the American Army shall be 
considered as a common fund for the use and benefit of such of the United States as 
have become, or shall become, members of the confederation or federal alliance of the 
said States, Virginia inclusive, according to their usual respective proportions in the 
general charge and expenditure, and shall be faithfully and bona fide disposed of for 
that purpose and for no other use or purpose whatsoever: Provided, That the trust 
hereby reposed in the delegates of this State shall not be executed unless three of them, 
at least, are present in Congress. 

" 'And whereas the said general assembly, by the resolution of June 6, 1783, had 
constituted and appointed us, the said Thomas Jefferson, Samuel Ilardy, Arthur Lee, 
and James Monroe, delegates to represent the said Commonwealth in Congress for one 
year, from the first Monday in November then next following, which resolution remains 
in full force: 



STATE CLAIMS FOR NORTHWEST TERRITORY. 9 

"'Now, therefore, know ye that we, the said Thomas JelTensoii, Samuel Hardy, 
Arthur T.ee, and James Monroe, by virtue of the power and authority committed to 
us by the act of the said General Assembly of X'irginia before recited, and in the name 
and for and on behalf oi the said Commonwealth, do by these presents convey, trans- 
fer, assign, and make over unto the United States, in Congress assembled, for the 
benefit of the said States, \'irginia nclusive, all right, title, and claim, as well of stnl 
as jurisdiction, which the said ("ommiuiwealth hath to the territory or tract of country 
within the limits of the Virginia charter situate, lying, and l)eing to the northwest of 
the River Ohio, to and for the uses and ])urpofies and on the conditions of the said 
recited act. In testimony thereof we have hereunto subscribed oiu- names and afiixed 
our seals in Congress the 1st day of March, in the year of our Lord 1784, and of the in- 
dependence of the United States the eighth.' " 

Rfsnhrd, That the United States in Congress assembled are ready to receive this 
deed whenever the delegates of the State of Yii'ginia are ready to execute the same. 

The delegates of Virginia then proceeded and signed, sealed, and delivered the 
said deed, whereupon Congress came to the following resolution: 

Resolved, That the same be recorded and enrolled among the acts qI the United 
States in Congress assembled. 

The claim wliiclt will be urged arises out of tiie following clause 
in the act of Virginia and in the deed of cession: 

That all land within the territory so ceded to the United States and not reserved 
or appro])riated to any of the before-mentioned purposes, or disposed of in bounties to 
the officers and soldiers of the American Army, shall be considered as a common fund 
for the use and benefit of such of the United States as have become or shall become members 
of the Confederation, or Federal Alliance, of the said States, Virginia inclusive, according 
to their usual respective proportions in the genei-al charge and expenditure, and shall be 
faithfully and bona fide disposed of for' that purpose and for no other use or purpose u^hat- 
soever. 

The contention, teisely stated, is that the laiited States has treated 
this territory as if it lied the absolute title and owneiship thereof, 
and has failed to respect the rights of the thirteen original States, for 
whose "use and benefit" the territory was granted. There is no 
great mystery about the proposition. The courts are sought in oider 
to settle, first, what is the construction of the above reservation; and, 
second, if a trust was created, liow much does the trustee owe to the 
beneficiaries, if anything ? 

It is haid to conceive how lawyeis and statesmen could drop into 
the error that by such a grant as that and with such a reservation as 
that the Federal Government could dispose of, give away, or sell this 
vast domain withotit regaiding the reservations which I have just 
rerd. There is no room for construction. It construes itself. It 
either creates a trusteeship in the National Government, \\'ith the 
National Government as the trustee and the thirteen original States 
as the beneficiaries, or else it is a conveyance with a condition sub- 
sequent, and a condition subsequent is just as binding upon the 
grantee who accepts as a condition precedent. A condition precedent 
prevents title from vesting until the condition shall be performed. 
A condition subseciuent allows the title to vest at once, out it does 
not relieve the grantee from the duty of performing each and every 
condition when he accepts the conveyance and takes the property 
under it. 

The Confederation was little more than a limited part nei ship 
among the States for common defense. There was no way of enforc- 
ing against a State in that Confederation an order or law of the 
Congre.s concerning western lands. There M'as no power delegated 
to the Congress concerning territory or its management and govern- 
ment. The sovereign States were paying the expenses of the Kevo- 
lutionary War out of a common fund "supplied" by the States "in 



10 STATE CLAIMS FOR NOETHWEST TEERITORY. 

proportion to the value of the land in each State," and so forth. 
(Art. VIII, Confederation.) The Federal Government was then a 
mere agent of the States, and the grant made hy Virginia kept that 
relation in view. Eacli of the original States had the right to own 
land and to be the beneficiary under a trust. Each could purchase, 
hold, and sell land. The Confederation owned nothing, but man}^ of 
the States, like Virginia, claimed western lands. This was the situ- 
ation when the present Constitution was framed and ratified. The 
Constitution afterwards foimcd provided that when ratified by nine 
States it would be effective as to those ratifying. 

Suppose, Mr. President, that only the nine States necessary to 
make the present Constitution binding should have ratified it, surely 
those nine could not have appropriated a trust subject belonging to 
the thirteen States, for the other four would then have come to the 
trustee, the National Government, for a settlement of the trust prop- 
erty and for their proportion of it. 

It so happened that the thirteen States did ratify it, but if they had 
not done so we can at once see that the other four, which had been left 
out, even under the construction which history has mistakenly made 
of this grant, could have had their part of it proportioned and could 
have compelled the trustee by well-known principles of equity prac- 
tice to account for the trust subject. 

Mr. President, we are not left alon'e to the circumstances of the 
parties and contemporaneous history for the construction of that 
instrument. Before the Constitution of the United States was ratified 
winle we had nothing but the slim Federal Alliance, the National 
Government ap])liod to the State of Virginia to change some of the 
terms of the original cession, thus recognizing the rights of Virginia. 
Even when she wanted to change the number of States that should 
be made out of that great territory she had to go back to the State 
of Virginia and ask Virginia's consent to it, which consent Virginia 
gave as to that particular matter and none other, not changing the 
terms of the grant with which my bill deals. This action of the 
United States is set forth fully in the j^aper prepared by Dr. Fuller, to 
which I will call attention later, and I will therefore not read any 
part of that action of Congress here. 

But the Constitution of the United States was, bear in mind, a 
contemporaneous act. We had as president of the Constitutional 
Convention George Washington, a citizen of Virginia, who was 
familiar with the whole subject of Virginia's territorial limits and her 
cession to the Federal Government. It was provided in that Consti- 
tution that contracts similar to this which were made with the 
States should be preserved, and were not thereby swallowed up by 
the national entity which was created when the Constitution was 
adopted. 

I call attention especially, first, to section 3 of Article IV of the 
Constitution of the L nited States, which provides that — 

The Congress shall have power to dispose of and make all needful rules and regula- 
tions respecting the territory or other property belonging to the United States; and 
nothing in this Constitution shall be so construed as to prejudice any claims of the 
United States or of any particular State. 

There could not have been any claim of any particular State 
except the claims regarding the Revolutionary War and this par- 
ticular claim which was reserved to all of the thirteen original States 



STATE CLAIMS FOR NORTHWEST TERRITORY. 11 

1)}^ the munificence of the old State of Virginia. This clause of the 
Constitution could not [lossihly have had any purpose except to 
protect the States in their prior dealings with the P>deral Govern- 
ment. The first part of the sentence grants power to govern the 
''territory" of the ITnited States; the second part protects all 
"claims" of the States. The fact that this ])rotection to '"claims" 
of the States is inserted in the clause dealing with the ''territory" of 
the Ignited States is most convincing that the framers of the Consti- 
tution had in mind the Mrginia cession. 

Again, Article VI of the Constitution provides that — 

All debts contracted and engao-ements entered into before the adoption of this 
Constitution shall be as valid against the United States under this Constitution as 
under the Confederation. 

We must keep in mind the very limited powers of the Confedera- 
tion, the enlarged powers of the Federal Government under the 
Constitution, and the fact that when the Constitution was written 
the proceedings of the Legislature of Virginia and the Continental 
Congress concerning this cession were recent events. Virginia's part 
in drafting and ratifying the Constitution must be construed from 
the standpc int of her prominence in the Union, her importance as a 
State, the prominent ])osition occupied by her representatives in the 
convention, and the great deliberation which she pursued in making 
the cession. Having created a trust for herself and her 12 sister ^- tates, 
it was natural that her representatives in the convention would see 
to it that in creating a new government in which the btates would 
reserve less of their sovereignty, the trust would be protected. It 
seems to me that the two clauses of the Constitution cpioted furnish 
all the guaranties needed by the thirteen original States to preserve 
their rights in the cession of 1784; but I would hate to think that 
this great Government would choose to occupy the unenviable posi- 
tion of administrator de son tort, much less that of a faithless trustee. 

I shall reserve for a later time, when this bill shall come back into 
the Senate, as I hope it will, a more minute discussion of what this 
grant has meant to this Government, what has been brought to this 
Government from the great munificence of the State of A^irginia; 
but sufhce it to sa}^ at the present time that tha.t grant embraced the 
States of Ohio, Indiana, Illinois, Wisconsin, Michigan, and a part of 
Minnesota, 170,000,000 acres of land, a munificence unknown any- 
where else in history. It stands to-day as a monument to the old 
State of Virginia that in the hour of the Government's peril, when 
others hesitated Virginia gave her all th?t this might become a great 
Nation; and in view of the small reservation that she made here for 
the benefit of those interested, for the benefit of those most concerned, 
it is not asking too much, it seems to me, when she and those occu- 
pying the same position which she does in reference to this fund 
should come now to the Government, when positions have changed, 
when the Government has all and the States of Virginia and West 
Virginia have little — I say it is not asking too much when they come 
now to the Federal Government and ask that a simple, plain trust 
shall be executed as the parties to it evidently intended it should be 
done. 

I should mention that this territory or the great States which 
have been formed from it 'have furnished seven Presidents of the 



12 STATE CLAIMS FOR NORTHWEST TERRITORY. 

United States. The present President of the United States came 
from that territory. All the three who died at the hand of an 
assassin came from those States. I may say further that it will not 
be the fault of the States in that territory if they do not continue 
the hal)it of furnishing Presidents of tlie United States for some 
time to come, because we have in that territory at least four active 
candidates and I think about five dark horses at the last tabulation 
that I made. When we think what this territory has been to the 
United States ; what has been enacted within the States created from 
it; what its men have done for commerce, art, literature, and hu- 
manity; and then consider what might have been Virginia's position 
had she retained it and thus kept her boundaries intact, from the 
ocean to the Great Lakes and the Mississippi, the imagination is 
baffled in any attempt to conceive what differences it would have 
made in history, and at the same time the generosity of Virginia 
towers above the most extreme view that may be taken of the pos- 
sibilities to the national purse strings that may result from a settle- 
ment of this trust. 

Mr. President, it may be asked why Virginia and West Virginia 
have so long remained silent and why they should demand at this 
particular time that this trust be settled. That really has notliing 
to do with the case, but it may be answered that you need not call 
upon the trustee to account until the trustee has disposed of the 
.trust subject. It has only been recently that the United States 
Government has disposed of the last of this land. 

Another reason, Mr. President, is that there has been no tribunal 
in which my State, West Virginia, could litigate t^iis matter, either 
at law or in equity. 

But it may be said as a third reason that the States and the people 
who were generous to the Federal Government in 1784 would be 
equally so now, only that the time has come when their creditors are 
pressing them for a settlement, and it is but just and right that they 
should call upon their greatest debtor, the National Government, to 
make a settlement of a matter long, long standing. 

Mr. President, this bill asks for no appropriation; it does not ask 
the Government to commit itself to anything except justice and a 
''square deal;" but it does ask that a jurisdiction and a tribunal 
may be provided in which each and all of the 13 original States, 
including the two daughters of Virginia, West Virginia and Kentucky, 
may pre5ent their claims, may liave them heard, and finally that an 
appeal may be liad to the Supreme Court of the United States. Cer- 
tainly the United States can trust its own courts to do it ample and 
complete justice. So thoroughly have the people of Virginia and 
West Virginia convinced themselves of the justice of this cause that 
they are perfectly willing to leave it in the last instance to the liighest 
tribunal of the Government. This bill provides that the case may 
be first tried by tlie Court of Claims, and then, on appeal, by the 
Supreme Court of tlie United States. 

Mr. President, as a part of my remarks I should like to introduce 
a resolution of the State of Virginia passed in 1910, which I will not 
read, but ask to have inserted in tlie Record, calling upon lier Repre- 
sentatives in Congress to present this claim. 

The Vice President. Without objection, the resolution will be 
inserted in the Record. 



STATE CLAIMS FOR NORTHWEST TERRITORY. 13 

The resolution referred to is as follows: 

House journal and document, Legislature of Virginia, 1910 (p. 757). 

Mr. Page offered the following joint resolution: 

''Be it resolved by the house of delegates (the senate concurrinfi) , That the question of 
the rights of Virginia in the Northwest Territory, or in the proceeds derived or to be 
derived from the sales or other disposition of the lands granted under the ordinance 
session [cessit)n| and (lis])osed of in contravention of such ordinance by the (io\orn- 
ment of the United States, be submitted to the Virginia delegation in Congress with 
the request and direction that they take such steps as may be necessary to determine 
and safeguard the rights of Virginia in the premises, if any she may have, and the 
governor of Virginia is requested to cooperate with the said Virginia delegation in 
regard to this matter." 

Which was agreed to. 

Ordered. That Mr. Page carry this joint resolution to the senate and request their 
concurrence. 

A message was received from the senate by Mr. Halsey, who informed the house 
that the senate had agreed to the joint resolution. 

Mr. Chilton. I will say, Mr. President, that for a long time the 
Senators from Virginia and West Virginia have been investigating 
this subject, and the bill which I have ])resented, as shown from the 
memoranda on the back of it, is the result of the labors of the two 
Senators from Virginia and the two Senators from West Virginia, 
When one of the present Senators from Virginia was governor of that 
State, he took a great interest in this subject and transmitted to the 
general assembly of that State a communication, a very strong paper, 
from Dr. R. B. Fulton, formerly of the University of Mississippi, who 
made a yery thorough investigation of this subject. I should like 
permission to insert, as a part of my remarks, the message of the 
governor of Virginia and the accompanying papers. It is Virginia 
Senate Document No. 3. I would ask to omit such parts of this 
document as I have already quoted, indicating in the Record the 
omitted part by stars. 

The Vice President. Without objection, permission to do so is 
granted. 

The document referred to is as follows: 

[Senate Document No. 3.] 

communication from the governor op virginia, transmitting certain corre- 
spondence and reports in reference to the claim of virginia against the 
united states government on account op the cession of the northwest 
territory. 

Commonwealth of Virginia, 

Governor's Office, 
Richmond, Va., January 24, 1901. 
To the General Assembly of Virginia: 

Superintendent of Public Instruction Hon. J. D. Eggleston and Dr. Robert B. 
Fulton, superintendent of the Miller School, have called to my attention a large claim 
which the State of Virginia has against the Federal Government, arising from the 
cession to the United States of the vast territory once possessed by this Commonwealth 
north of the Ohio River. Dr. Fulton has, at the request of Superintendent Eggles- 
ton and myself, for some time been making a thorough investigation of this matter 
and has compiled a complete and detailed statement of this claim, which appears to 
establish its justice and legality and imposes upon me the duty of transmitting the 
facts and information obtained by him to you for consideration and action. 

Prominent Virginians, including Commodore Maury and Superintendent of Public 
Instruction Dr. William H. Ruffner, have presented in writings and reports this claim 
of the State of Virginia. 

Succinctly stated, the claim presented is as follows: 

The vast territory north of the Ohio River was included in Virginia's original 
charter of 1609, which charter was prior to the charter of any other State and which 



14 STATE CLAIMS FOR NORTHWEST TERRITORY. 

territory was included in the boundaries of Virginia when she asserted her independ- 
ence and organized her government as a sovereign State in 1776. This territory, 
in addition to being Virginia's by charter rights, became hers also by conquest, since 
it was conquered from the British by Virginia troops, commissioned by the governor 
and council of Virginia. The expenses incurred by these troops in this conquest 
were paid out of the treasury of this Commonwealth. Virginia was in actual posses- 
sion and control of this territory until her cession to the Federal Government and the 
acceptance of her cession by the Federal Government. Prior to this cession this 
territory was organized as the county of Illinois and held as a part of the State. Thus, 
by charter rights, by conquest, and by actual possession, this territory ceded con- 
stituted a part of Virginia. The fact that the United States Government derived 
title to this vast territory by cession and deed of conveyance made by Virginia to 
the United States Government has been clearly and distinctly recognized by the 
Supreme Court of the United States in the case of Handley's Lessee v. Anthony 
(5 Wheat., p. 374). In this case, the opinion of which was rendered by Chief Justice 
Marshall, the court decided, in fixing the boundary lines between the State of Ken- 
tucky and the State of Indiana, that the boundary line of Indiana must be deter- 
mined by the cession made by the State of Virginia to the United States Government 
and the terms and limitations contained in that cession, since the title of the United 
States to the territory was derived from this cession of the State of Virginia. The 
opinion of this court was further sustained by the general court of Virginia in the 
case of Commonwealth v. Garner (3 Grattan, p. 655). Thus, the prior rights of Vir- 
ginia to this territory have been judicially determined. 

In the acts of Virginia making the cession of this large territory to the United States 
and in the deed of conveyance in pursuance of the act of the general assembly executed 
by her representatives in the Continental Congress, Thomas Jefferson, Samuel Hardy, 
Arthur Lee, and James Monroe, according to her directions, were contained certain 
conditions, which conditions the Federal Government accepted. Among the condi- 
tions thus enumerated and accepted by the Federal Government was the following: 

"That all the land within the territory so ceded to the United States and not re- 
served or appropriated to any of the before-mentioned purposes, or disposed of in boun- 
ties to the officers and soldiers of the American Army, shall be considered as a common 
fund for the use and benefit of such of the United States as have become or shall 
become members of the confederation or P"'ederal alliance of the said States, Virginia 
inclusive, according to their usual respective proportions in the general charge and 
expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for 
no other use or purpose whatsoever." 

The United States Government, through Congress, has uniformly recognized that 
this territory ceded was derived from Virginia, and that she was bound by the condi- 
tions contained by the act of cession. Desirous of changing some of the conditions 
contained in the act of cession regarding the establishment of new States in the 
ceded territory, she requested Vii'ginia to make some alterations in these conditions, 
which Vh'ginia consented to, permitting the creation of States different from the orig- 
inal cession. By requesting Virginia to make this change Congress recognized that 
she had no right, even in the creation of States in this territory, to alter the terms of 
the original act of conveyance without the consent of the State of Virginia. 

Out of this territory ceded by Virginia were formed the States of Ohio, Indiana, 
Illinois, Michigan, Wisconsin, and a portion of Minnesota. The United States received 
by this cession 170,208,623 acres of land. Of this land some was appropriated to 
comply with the conditions contained in the act of cession accepted, other than the 
one above stated. The largest portion of it was sold and paid into the Treasury of 
the LTnited States, and used in payment of the public debt and in the payment of 
Fedeml expenditures. It may possibly be contended that this portion was, under 
the terms of the cession, used for the benefit of all States, as contained in the cession 
made by Virginia. But, contrary to the expressed conditions contained in the act 
of cession, Congress at different times, in the aggregate, appropriated 38,868,212 acres 
of land, and 12,953,654.70, derived from the sale of these public lands, entirely to ^ 
local uses within these six States. These amounts of land and money were appropri- 
ated for local school purposes, construction of canals, improvement of local roads, 
and other purposes within these States, entirely local. Thus it appears that more 
than one-fifth of the lands ceded by Virginia under definite provisions and conditions, 
reserving to Virginia an interest in them, has been disposed of in ways that have given 
no "use and benefit" to Virginia, as distinctly reserved for her in her act of cession. 
At the time that Virginia ceded her western territory to the United States Virginia's 
proportion in the general charge and expenditure was about one-seventh of the whole, 
and thus her reserved interest in the lands not specifically applied for the purposes 



STATE CLAIMS FOR NORTHWEST TERRITORY. 15 

stated in the deed of concession was about one-seventh. The vahle of this hind 
donated to kical uses (anioiinting to 3S, 868,212 acres), computed at $2 per acre, whi(;h 
was the price fixed by ('on<;ress when it was first offered for sale, would be $77,736,424. 
This, added to the amount of money appropriated of $2,958,054, would make the total 
value of the donation for local purposes, clearly contrary to the terms and provisions 
of cession, amount to $80,(595,078. Subject to such claims as mifi^ht exist in behalf of 
Kentucky and West Virginia, which were then a part of Virginia, Virginia has a right 
to demand of the Federal Government her part of these lands and money, which 
Congress appropriated entirely to local uses and for which Virginia received no benefit. 

The full statement of Dr. Fulton, which I file with this message, indicates other large 
and fair claims of Virginia, which the limit necessarily given to this message precludes 
me from mentioning. Though reserving to herself a fair share of the use and benefits 
to be derived from these many millions of acres of land, it appears that Virginia has 
never received an acre of land nor a cent of money from this source. The P'ederal 
Government accepted, by resolution, this cession of Virginia containing these condi- 
tions, and is bound in law and equity to discharge the obligations of the compact 
made with Virginia. The United States has fully recognized her obligations to com- 
ply with all the conditions imposed in the Virginia conveyance and cession by ful- 
filling all except the one reserving to Virginia a share in the use and benefits of all 
these lands. Mrginia should insist that this should be complied with. As a party 
to the compact she is the proper party to make this demand. 

I commend to jour most careful consideration the very valuable and interesting 
history of this transaction and the claims of the State of Vu'ginia upon the Federal 
Government, which has been so industriously and carefully compiled by Dr. Fulton. 
I have had no opportunity to make a careful personal examination of the statements 
contained in the documents submitted to me, hence I recommend that the General 
Assembly oi A'irginia refer this matter to an appropriate committee for examination 
and report. If the conclusions reached by that committee concur with these con- 
tained in the statements and facts presented herewith, 1 then recommend that the 
general assembly authorize her Representatives in Congress to take such action as 
they may think proper to ha^•e this claim of Virginia against the Federal Government 
fairly and justly settled, and that the attorney general of this State be directed to 
cooperate with them and to take such action as he may think the best interest of 
Virginia demands. 

I transmit with this message a full statement of the facts and conclusions obtained 
by Dr. Fulton in his research and investigation, with letters from Supt. Eggleston and 
Dr. Fulton. 

Respectfully submitted. 

Claude A. Swanson, Governor. 



Commonwealth of Virginia, 
Department of Public Instruction, 

Richviond, Va., January 22, 1910. 
His Excellency Claude A. Swanson, 

Governor of Virginia, Richmond, Va. 
My Dear Governor: In the State school reports of Supt. W. H. Ruffner for the 
years 1871-1873, extended mention is made of the claims of Virginia against the 
United States, based on the cession of the Northwest Territory. 

I started an investigation of these claims in 1906, but found that it would take too 
much of my time from official duties. Knowing that Dr. R. B. Fulton, at one time 
chancellor of the University of Mississippi and now president of the Miller School of 
Virginia, had an intimate acquaintance with the public-land legislation and policies 
of the United States Government, 1 asked him, in the spring of 1907, to make a thor- 
ough investigation of \'irginia's rights in the premises. 

A few months ago, as you will recall. Dr. Fulton and I had a conference with you 
in regard to this matter and laid before you the results of the investigation made by 
Dr. Fulton. You suggested certain further lines of inquiry, which have been care- 
fully pursued since that time. 

I t ansniit herewith a letter from Dr. Fulton, with accompanying documents, for 
your conside'ation and for such action as you think the'interests of the State demand. 
1 am, sir, with high regard, 

Res])ectfully, yom-s, J. D. Eggleston, Jr., 

Superintendent of Public Instruction. 



16 STATE CLAIMS FOR NORTHWEST TERRITORY. 

The Miller School, 
Miller School Post Office, Albemarle County, Va., 

Miller School, Va., December 22, 1909. 
Hon. Joseph D. Eggleston, 

Swperintendnet of Public Instruction, Richmond, Va. 
My Dear Mr. Eggleston: In the spring of the year 1907 you called my atten- 
tion to the statements published by your predecessor in office, the late Dr. William 
H. Ruffner, in his first, second, and third annual reports as superintendent of public 
instriiction (1871-1873), regarding the reserved interest of the State of Virginia in the 
lands northwest of the Ohio River, which lands she ceded, under certain conditions, 
to the United States in 1784. Soon after this conversation, in June, 1907, you re- 
quested me to make an examination of the matter to which Dr. Ruffner referred, and 
you supplied me with copies of the reports above mentioned and gave many helpful 
suggestions. 

The matter has had my most careful consideration. I have sought original sources 
of information, as well as the opinions of statesmen and writers which might throw 
light upon the subject. While its various ramifications have led in many directions, 
have been involved with many coordinate or conflicting interests, and have extended 
over a long historical period, I trust that the essential facts which should form the 
basis of a correct judgment are shown with sufficient clearness in the condensed state- 
ment herewith presented. 

In this statement I have brought together, in proper sequence, certain well-known 
historical facts, and have made references to the authorities consulted. 

The subject is of more than academic interest, since it involves questions of right 
and justice and patriotism, and concerns the great State of Virginia in her relations 
to her sister States and to the Republic. 
You are at liberty to use this paper in any way which you may think proper. 
Very sincerely, yours, 

Robert B. Fulton. 



the VIRGINIA land CESSION OP 1784. 

The first settlements of the English upon the Atlantic coast of North America were 
made under charters or grants from the British Crown, The text of these charters 
may be found in Poore's Charters and Constitutions of the United States. A brief 
discussion of the 13 original American colonies, as constituted under the royal charters, 
may be found in Dr. B. A. Hinsdale's The Old Northwest (published by Silver, 
Burdett & Co., 1899). Hinsdale follows the texts of the charters as given by Poore. 
In these charters the attempts made to specify limits and boundaries in an unknown 
continent unavoidably led to controversy when the settlements were extended from 
their original centers." It is not the present purpose to discuss these controversies, 
but only to state such facts as relate to the subject in hand. 

The settlement at Jamestown in .1607 was made under a charter given in 1606 by 
King James I. "But as it did not prove satisfactory, the King in 1609 .granted to the 
London Co. a second charter, in which he bounded the colony that henceforth monopo- 
lizerl the name of Virginia, as follows; 

"* * * Situate, lying, and being in that part of America called Virginia, from 
the point of land called Cape or Point Comfort, all along the seacoast to the northward 
200 miles, and from the said point of Cape Comfort all along the seacoast to the south- 
ward 200 mile.s, and all that space and circuit of land lying from the seacoast of the 
precinct aforesaid up into the land throughout from sea to sea. And also all the 
islands lying within 100 miles along the coast of both seas of the precinct afore- 
said. * * *" (Hinsdale, "The Old Northwest," p. 73.) 

When Virginia asserted her independence and organized her government as a sov- 
ereign State in 1776 she reaffirmed her charter right to the territory in the limits fixed 
by King James I in 1609. Section 21 of her constitution, adopted June 29, 1776, reads: 

"The territories contained within the charters erecting the colonies Maryland, 
Pennsylvania, North and South Carolina are hereby cerled, released, and forever 
confirmed to the people of those colonies, re.spectively, with all the rights of prop- 
erty, jurisdiction, and government, and all other rights whatsoever which inight at 
any time heretofore have been claimed by Virginia, excepting the free navigation and 
use of the Rivers Potomack and Pohomoke, witli the property of the Virginia shores 
or strands bordering on either of the said rivers, and all imprnve;nents which have been 
or shall be made thereon. 

"The western and northern extent of Virginia shall in all other respects stand as 
fixed by the charier of King James I, in the year 1609, and by the public treaty of peace 



STATE CLAIMS FOR NORTHWEST TERRITORY. 17 

between the courts of (ireat Britain and France in tlie year IKIo, unless by act of legis- 
lature one or more territories shall hereafter be laid off and governments established 
westward of the Allegheny Mountains. And no purchase of lands shall be made of 
the Indian natives but on behalf of the publif l)v authority of the general assem- 
bly." (Ilening's Stats, of Va., vol. Jt, pp. IIS-I !!».") 

This territorial claim of Virginia, based upon her charter, placed her western liound- 
ary at the Mis.sissippi River and left an undetermined extension northward for her 
teiTitory nortliwest of the Ohio liiver. 

Acting under instructions from the governor and council of Virginia, dated January 
2, 1778, Ceorge R(tgers Clark, in command of Virginia troops, in 1778 and 1779 cap- 
tured all the I^ritish posts in the territory northwest of the Ohio, excepting those in 
the extreme north on the (Jreat Lakes, and held the territory from the Ohio to the 
Lakes in the name of Virginia. 

"The Northwest had been won by a Virginia army, commanded by a Virginia offi- 
cer put in the field at Virginia's expense." (Hinsdale's "The Old Northwest," 
p. 158.) 

On October 27, 1777, the Continental Congress in framing the Articles of (Confedera- 
tion, which were to be submitted to the several States for acceptance, inserted a 
clause to the effect that "no State shall be deprived of territory for the benefit of 
the United States." (Secret Journals of Congress under date Oct. 27, 1777.) 

"The six smaller States which held no western lands contended with tenacity and 
determination that said lands should not be held by the States owning them for their 
exclusive use, while the seven States which claimed and under the confederation held 
vast sections of Crown grant lands in the West held the contrary opinion." (History 
of the Public Domain, p. 60, Government Printing Office.) 

Maryland refused to sign the Articles of Confederation until the States holding or 
claiming western territory should make a surrender of these lands or claims to the 
United States. Her general assembly voted, on December 15, 1778, vigorous instruc- 
tions to her Delegates in Congress, urging the view and contentions of Maryland, 
which were presented in Congress January 6, 1779. (History of the Public Domain, 
pp. 61-62.) A still more earnest paper adopted the same day, December 15, 1778, 
was not presented in Congress until May 21, 1779. (Secret Journals of Congress, date 
of May 21, 1779.) 

In reply to this action by Maryland the General Assembly of Virginia, on December 
14, 1779, addressed to the Delegates of the United States in Congress assembled a 
"remonstrance," firm and vigorous in tone. (Hening's Statutes of Virginia, Vol. X, 
pp. 546 et seq.) 

On the 7th of March, 1780, the Delegates in Congress from New York presented an 
act of the legislature of that State offering to limit the boundaries of that State on the 
west, leaving to the United States territory in the West claimed by New York. (His- 
tory of the Public Domain, p. 63; Journals of Congress, Mar. 7, 1780.) Her claim 
was largely based upon treaties with the Indians. 

Following the reception of these papers, Congress took the following action (Journala 
of Congress, Sept. 6, 1780; History of the Public Domain, p. 64): 

******* 

Virginia ceded and the United States in Congress assembled accepted all of her 
territory northwest of the River Ohio under the several conditions above shown. On 
July 7, 1786, Congress asked of Virginia alterations of the conditions of the above 
act of cession, as far as these conditions relate to the limits of new States to be formed 
in the territory so ceded, on account of difficulty in forming the lands into States with 
boundaries as contemplated in the deed of cession. Following is the resolution 
adopted in Congress July 7, 1786 (History of the Public Domain, pp. 69-70; Journala 
of Congress, July 7, 1786; Ilening's Statutes of Virginia, Dec. 30, 1788, vol. 12, p. 780): 

''Resolved, That it be, and it hereby is, recommended to the Legislature of Vir- 
ginia to take into consideration their act of cession, and revise the same so far as to 
empower the United States in Congress assembled to make such a division of the ter- 
ritory of the United States lying northerly and westerly of the River Ohio, into dis- 
tinct re])ublican States, not more than five nor less than three, as the situation of that 
country and future circumstances may require, which States shall hereafter become 
meml)ers of the Federal Union, and have the same rights of .sovereignty, freedom, 
and independence as the original States, in conformity with the resolution of Con- 
gress of the 10th of October, 1780." 

On July 13, 1787, Congress passed the ordinance for the government of the territory 
northwest of the River Ohio, which embraced the above pjroposition as to the number 
of States in the Virginia cession. The subject matter of this ordinance had been under 

S. Doc. 948, 62-2 2 



18 STATE CLAIMS FOE NORTHWEST TERRITORY. 

consideration by Congress from May 10, 1786. (History of the Public Domain, p. 150.) 
December 30, 1788, the General Assembly of the State of Virginia passed the fol- 
lowing (act of Virginia of 30th December, 1788): 

"Whereas the United States in Congress assembled did. on the 7th day of July, in 
the year of our Lord 1786, state certain reasous showing that a division of the territory 
which hath been ceded to the said United States by this (,'ommonwealth, into States, 
in conformity to the terms of cession, should the same be adhered to, would be attended 
with many inconveniences, and did recommend a revision of the act of cession, so 
far as to empower Congress to make such a division of the said territory into distinct 
and republican States, not more than five nor less than three in number, as the sit- 
•uation of that country and future circumstances might require. And the said United 
States in Congress assembled have, in an ordinance for the government of the terri- 
tory northwest of the River Ohio, passed on the 13th of .July, 1787, declared the fol- 
lowing as one of the articles of compact between the original States and the people 
and States in the said territory, viz: 

"Art. V. There shall be formed in the said territory not less than three nor more 
than five States; and the boundaries of the States, as soon as Virginia shall alter her 
act of cession and consent to the same, shall become fixed and established as follows, 
to wit: The western State in the said territory shall be bounded by the Mississippi, 
the Ohio, and Wabash Rivers; a direct line drawn from the Wabash and Post Vincents, 
due north to the territorial line between the*United States and Canada, and by the 
said territorial line to the Lake of the Woods and Mississippi. The middle State shall 
be bounded by the said direct line, the Wabash from Post Vincents to the Ohio; by 
the Ohio, by a direct line drawn due north from the mouth of the Great Miami to the 
said territorial line, and by the said ten'itorial line. The eastern State shall be bounded 
by the last-mentioned direct line, the Ohio, Pennsylvania, and the said territorial 
line: Provided, however, And it is further understood and declared that the bound- 
aries of these three States shall be subject sa far to be altered that, if Congress shall 
hereafter find it expedient, they shall have authority to form one or two States in that 
part of the said territory which lies north of an east-and-west line drawn through the 
southerly bend or extreme of Lake Michigan. And whenever any of the said States 
shall have 60,000 free inhabitants therein, such State shall be admitted by its Dele- 
gates into the Congress of the United States on an equal footing with the original 
States in all respects whatever, and shall be at liberty to form a permanent constitu- 
tion and State government: Provided, The constitution and government so to be 
formed shall be republican, and in conformity to the principles contained in these 
articles; and so far as it can be consistent with the general interest of the confederacy, 
such admission shall be allowed at an earlier period, and when there may be a less 
number of free inhabitants in the State than 60,000." 

And it is expedient that this Commonwealth do assent to the proposed alteration, 
80 as to ratify and conform the said article of compact between the original States and 
the people and States in the said territory. 

2. Be it therefore enacted by the general assembly. That the afore-recited article of 
compact between the original States and the people and States in the said territory 
northwest of the Ohio River be, and the same is hereby, ratified and confirmed, 
anything to the contrary in the deed of cession of the said territory by this Common- 
wealth to the United States notwithstanding. (History of the Public Domain, p. 70; 
Hening's Statutes of Virginia, vol. 12, p. 780.) 

That there was thus formed a definite contract and agreement between the United 
States and the State of Virginia, and an engagement by Congress to carry out the definite 
purposes and conditions of this agreement, is clearly shown by the words of the acts 
above quoted, and the circumstances under which they were passed. 

That the distinct conditions upon which Virginia's deed of cession was made were 
recognized as binding by the United States, at the first, is shown by the fact that the 
several conditions, marked (A), (B), (C), (D), (E), above, have, through various later 
enactments, been carefully fulfilled by Congress. (See Land Laws of the United 
States.) 

The obligation and engagement distinctly stated in the last condition upon which the 
Virginia cession was made and accepted, marked (F) above, must remain forever bind- 
ing as at first, unless annulled by formal joint action by Congress and the State of 
Virginia, or rendered void by the adoption of the Constitution of the United States 
after the cession was made, or specifically fulfilled by Congress. 

There has been no legislation by the State of Virginia and the Congress changing this 
last condition. 

The Constitution of the United States, Article IV, section 3, declares that the Con- 
gress shall have power to dispose of and make all needful rules and regulations respect- 
ing the territory or other property belonging to the United States; and nothing in this 



STATE CLAIMS FOR NORTHWEST TERRITORY. 19 

Constitution shall ho so ronstrued as to prejudice any claims of the United States or of 
any jiarlicuhir Stato. 

Article VI of the Constitution of the ITiiitcd States declares that "All debts con- 
tracted, and (Miiiai^enients entered into, before t.he adoption of this Constitution, sliall 
be as valid against the United States under this Constitution, as under the confedera- 
tion." 

The engagement entered into by the United States with Virginia is thus not ren- 
dered void, l>ut reaflirmed by the "terms of the Constitution of the United States. 

As to the fuinilment of this last and most important of the conditions and engage- 
ments inVirginia's act of cession, it appears from all the history and record of the matter 
that Virginia, through no fault of hers, has entirely failed to receive her due and pro- 
portionate share of the use and benefit of these lands in the territory northwest of the 
River Ohio, as distinctly provided and reserved in her deed of cession. 

Tlie following statement, relating to the specific ])erformance of the engagement 
entered into by Congress to dispose of the lands ceded by Virginia in the manner and 
for the purpose stipulated, can be verified by the citations given. 

As above recited, on March 1, 1784, the United States acquired from Virginia title 
to the soil and jurisdiction of the territory northwest of the River Ohio under the con- 
ditions stated. Immediately Congress began the enactment of legislation for the gov- 
ernment cf this territory, and for the disposition of the lands therein. 

On March 1, 1784 (History of the Public Domain, pp. 147-149; Journals of Con- 
gress, Mar. 1, 1784), a committee, consisting of Mr. Jefferson, of Virginia; Mr. Chase, 
of Maryland; and Mr. Howell, of Rhode Island, submitted to Congress a plan for the 
tem'ijorary government of the western territory. This report was discussed and 
finally adopted, after amendment, on April 23, 1784. (History of the Public Domain, 
pp. 148-149; Journals of Congress, Apr. 23, 1784.) 

This remained in force as law until the adoption of the ordinance for the govera- 
ment of the territory of the United States northwest of the River Ohio of July 13, 1787. 
(History of the Public Domain, pp. 149-153; Journals of Congress, July 13, 1787.) 

These two ordinances related in their terms only to the government of the territory 
and not to the disposition of the lands therein. 

On April 29, 1784 (History of the Public Domain, pp. 196-197), Congress, by resolu- 
tion, called the attention of the States still holding western lands to the fact of former 
resolutions of Congress asking for cessions; and "in presenting another request for 
farther cessions," stated (speaking of persons who had furnished supplies to carry on 
the war): "These several creditors have a right to expect that funds shall be provided 
on which they may rely for their indemnification; that Congress still considers vacant 
territory as an important resource, and that, therefore, the said States be earnestly 
pressed, by immediate and liberal cessions, to forward these necessary ends, and to 
promote the harmony of the Union." This was in accordance with a request made 
in Virginia's deed of cession. 

These western lands were looked upon by all the financiers of this period as an asset 
to be cashed at once for payment of current expenses of Government and extinguish- 
ment of the national debt. (History of the Public Domain, pp. 196-197.) 

On the 20th of May, 1785 (History of the Public Domain, pp. 196-197), Congress 
passed an ordinance for ascertaining the mode disposing of lands within the west- 
ern territory. It not only included disposition, but it gave the first plan of the 
survey of the lands prior to disposition. Under this ordinance the Board of Treasury 
(the Treasurj' Department prior to and under the confederation; see ordinances of 
Congress of Feb. 17, 1776, of July 30, 1779, and of May 28, 1784), consisting of three 
commissioners, were to receive the plats of surveys from the geographer (now sur- 
veyor general) in charge of surveys. The Secretary of War was then to draw by lot 
certain townships for land bounties for the use of the Continental Army, and the 
Board of Treasury was to draw the remainder by lot in the name of the 13 States, 
respectively, who were to advertise and sell them at public sale for not less than $1 
per acre. 

The provision for drawing certain tracts in the name of the 13 States was a move 
toward carrving out the last specific condition in the Virginia deed of cession. The 
clause requiring the drawing for the 13 States was repealed by Congress July 9, 1788. 
(History of the Public Domain, p. 197; Journals of Congress, July 0, 1788. > 

March 3, 1795 (History of the Public Domain, p. 200; Journals of Congress, under 
dates given). Congress by law provided that "the net proceeds of the sales of lands 
belonging, or which shall hereafter belong, to the I'nited States in the western ter- 
ritory thereof" shoidd constitute a portion of the sinking fund of the United States 
for the redemption of the public debt. 



20 STATE CLAIMS FOR NORTHWEST TERRITORY. 

May 18, 1796 (History of the Public Domain, p. 200; Journals of Congress, under 
dates given), Congress passed the act for the sale of the lands of the United States 
in tlie territory northwest of the River Ohio, providing for the sale of the surveyed 
lands in sections of 640 acres, at not less than $2 per acre, the proceeds to be paid to 
the Treasurer of the United States. 

"The general policy of land legislation by Congress was, fc.r the first 30 years, to 
meet exigencies by temporary enactments from time to time. This policy was con- 
tinued down to the"period of the passage of the preemption act of 1841." (History 
of the Public Domain, p. 205.) 

Under this ])olicy Congress fell into the habit of donating lands freely and liberally 
in the territory ceded b\' Virginia, apparently without considering whether or not 
the conditions of this cession were being fulfilled by such donations and grants for 
local ])enefit. 

As the result of this indefinite i)olicy, the lands in the territory ceded by Virginia 
have been practically all disposed of by the United States without any adjustment 
or settlement of Virginia's reserved interest therein. 

Passing by for the present the facts, which are of record in the Treasury Depart- 
ment of the Government, showing the receipts from the lands which were sold by 
the United Slates in the territory ceded by Virginia, and the disposition made of 
these receipts in the payment of the puVjlic indebtedness or otherwise, attention is 
called to the facts regarding the disposal by Congress of large tracts of land in the 
territory ceded by Virginia for various purposes, essentially local in their character, 
in the States organized in that territory, in which purposes and the suljsequent pses 
and benefits of the land thus donated Virginia and the other of the original 13 States 
had no part. 

The History of the Public Domain, prepared by the Public Land Commission in 
pursuance of the acts of Congress of March 3, 1879, and June 16, 1880, revised under 
subsequent acts of Congress and published by the Government Printing Office, 1884, 
and the Land Laws of the United States, Volumes I and 11 (House Miscellaneous, 2d 
sess. 47th Cong., 1882-83. Vols. XVI 1 and XVIII). show that Congress has made 
grants or donations of lands for the special benefit of the five States — Ohio, Indiana, 
Illinois, Michigan, Wisconsin — formed out of the territory ceded by Virginia, as 
follows: 

1 . One section or square mile in each township of 36 square miles was given in these 
States by Congress to the legislatures of these five States for public schools. This 
means one thirty-sixth part of the lands in each State, a total of 4,365,917 acres. (His- 
tory of the Public Domain, pp. "223-228; Land Laws of the United States, Vol. I, 
Nos. 28, 215, 346, 493, 622.) 

2. A donation of 72 square miles (and more in Ohio and Wisconsin) .was given to 
each of these five States for seminaries of learning or State universities — a total of 
299,520 acres. (History of the Public Domain, p. 228.) 

3. Three per cent or 5 per cent of the net receipts for sales of lands by the United 
States in each of these States was given to the States for roads, etc. The amounts 
which have accrued to the several States formed out of territory ceded by Virginia 
from these grants up to June 30, 1880, are for Illinois, $712,744.82; for Indiana, 
1618,277.50; for Michigan, 1471,344.55; for Ohio, 1596,634.10; for Wisconsin, 
$455,253.73. These amounts in Indiana, Illinois, and Ohio represent 3 per cent of the 
net proceeds of the sales of public lands in those States, and in Michigan and Wis- 
consin 5 per cent of such proceeds; total, $2,854,254.70. (Historv of the Public 
Domain, p. 238.) 

4. Congress gave to each of these five States 500,000 acres of the public lands in these 
States for internal improvements — a total of 2,500,000 acres. (History of the Public 
Domain, p. 255.) 

5. For canal-construction purposes Congress gave to Indiana, Ohio, Illinois, Wis- 
consin, and Michigan, from the year 1824 to June 30, 1880, a total of 4,424,073.06 acres. 
(History of the Public Domain, p. 250.) 

6. For military n^ads in Wisconsin and Michigan within the same period Congress 
gave more than 523,000 acres. (History of the Public Domain, p. 260.) 

7. Land grants for railroads to these States and corporations therein, up to June 30, 
1880, amounted to, in Illinois, 2,595,053 acres; in Michigan, 3,355,943 acres; in Wis- 
consin, 3,553,865 acres; total, 9,504,861 acres. (Historv of the Public Domain, pp. 
269, 270.) 

8. Congress gave to these several States salt springs and saline lands as follows: To 
Ohio, 24,216 acres; to Indiana, 23,040 acres; to lllinoL'^, 121,029 acres; to Michigan, 
46,080 acres — a total of 214,371 acres. (History of the Public Domain, p. 218.) 



STATE CLAIMS FOR NORTHWEST TERRITORY. 21 

9. UikUm- the swamp land acts ('onp;rr'ss <^ayo in Illiiioia 1,451,974 acres; (o Indiana, 
1,252, 70S acres; to .Michisjan, over 5.040,000 acres; to Wisconsin, over 3,036,548 acres; 
to Ohio, 25,640 acres — a total of over 1 1,406, S 17 acres. (Ilistorv of the Public Domain, 
p. 223.) 

10. ('Ongress gave in land bounties to .soldiers of the Continental Line and in the 
War of 1812. 8,095.220 acres in the territory ceded by Virginia, and the grants made 
in the reserved Virginia military district for the Virginia troops on Continental estab- 
lishment amounted to 3,770.000 acres — a total gninterl in bounties up to 1861 on these 
two accoui\ts of 11,865,220 acres. (History of the Public Domain, pp. 232-234.) 

11. Besides all the above, there were niniierous grants on .special accounts for river 
improvements, private donations, to special schools, for the local support of religious 
work, etc. These grants, mentioned in the History of the Pviblic Domain and in the 
I^and Laws of the Tnited States, show a total of over 100,000 acres for such uses 
purely local. 

That ])art of Minnesota lying east of the Mississippi River and of the ninety-fifth 
meridian was included in Virginia's ce.s.sion. It inclndes, by count of townships and 
fractions on our official United States niap, 16,588.800 acres. 

The total acreage of lands surveyed by the L'nited States in the territory ceded by 
Virginia is as follows (History of the Public Domain, p. 189): 

Acres. 

In Ohio 25, 576, 960 

In Indiana 21, 937, 760 

In Illinois 35, 465. 093 

In Michigan 36. 128, ()40 

In Wisconsin 34, 511, 360 

In Minnesota, east of Mississippi River 16, 588, 800 

Total 170, 208. 613 

In ^linnesota Congress gave even more liberally to local uses. As shown by the 
citations above, one-eighteenth of the area of Minnesota was given for schools, and 
for all the local \ises above specified a total of 17,184,233 acres was granted. Approxi- 
mately one-third of all the land in this State was thus given for local uses. In that 
part of the State lying in the Virginia cession this would amount to 5.529,600 acres, 
and .S99.400 in cash. 

The am^unts of land granted by Congress to Ohio, Indiana, Illinois, Michigan, and 
Wisconsin, or to persons in these States for local uses, as shown under the headings 
numbered above, omitting the tenth heading, are as follows: 

1 acres-. 4,365,917 

2 do. . . . 299, 520 

3 $2, 854, 2.54. 70 

4 acres. . 2, 500, 000 

5 do. ... 4, 420, 073. 06 

6 do. . . . 523, 000 

7 do. . . . 9, 504, 861 

8 do.... 214,371 

9 do. ... 11, 406, 847 

11 do. . . . 100, 000 

Total (.$2,854,254.70 in cash) do. ... 33, .334, 589. 06 

Similar grants in Minnesota.'east of the Mississippi, amounted to.do 5, 529, 600. 00 

And $99,400 in cash. 

Total for local uses ($2,953,654.70 in cash) do.... 38,864, 189.06 

It thus appears that more than one-fifth part of the lands ceded by Virginia under 
definite proviso and conditions reserving to Virginia an interest in them has been 
disposed of in ways that gave no "use " or "benefit " to Virginia, having been donated 
by Congress to local interests. 

At the time when Virginia ceded her western territory to the United States her 
"usual respective proportion in the general charge and expenditure" was about one- 
seventh of the whole, as shown by the requisition made by Congress upon the 13 
States at that time. At the time of the cession her reserved interest was, therefore, 
one-seventh of all the lands not specifically applied to the purposes stated in the 
deed of cession. 



22 STATE CLAIMS FOR NORTHWEST TERRITORY. 

The Aalue of the lands donated to local uses, amounting to 38,864,189 
acres, as shown above, computed at $2 per acre, which was the 
price fixed by Congress when thev were offered for sale by the act 
of May 18, 179G [History of the Public Domain, p. 205J, would be. . §77, 728. 378. 00 

The donated percentage on sales was. .-. 2, 953, 654. 70 

Total value of donations 80, 681, 032. 70 

The total area surveyed by the United States in the States formed in 

the Virginia cession, as above shown, amoimted to acres. . 170, 208, 613 

The total granted for local uses was do 38, 864, 189 

Total granted in bounties to soldiers do. . . . 11, 865, 220 

50, 729, 409 

As shown above ^'^- " " " "^- -^^^ ^^^ 

AS snown abo\e ^^^^ ^^^ ^29, 409 

Balance sold or to be sold do 119, 479, 204 

The price received varied from time to time, but probably averaged at least $1 
per acre. This would indicate receipts from sales of lands in the Virginia cession 
aggregating probably 1100,000.000. The exact facts are matters of record in the 
departments in Washington. 

A study of all the acts and resolutions passed by Congress and the several States 
regarding the cession of lands claimed by the original States, as set forth in the His- 
tory of the Public Domain, pages 60 to 81, shows that these cessions were asked by 
Congress and made by the States for the purpose of securing, through the sale of the 
lands, funds by which the financial embarrassment of Congress could be relieved 
and the public debt extinguished. The act of Congress of March 3, 1795, above quoted, 
distinctly provides for this use of the proceeds of the lands ceded. The public debt 
incurred in the War of the Revolution was eventually extinguished, and it appears 
from the last condition in Virginia's deed of cession that as soon as this was accom- 
plished her reserA'ed interest should have become immediately available for her use 
and benefit. 

No attempt has been made in this paper to discuss the interest of any other of the 
original 13 States in Virginia's cession. It appears that Kentucky and West Virginia, 
being formed out of territory that was a part of Virginia when the cession of the North- 
west Territory was made, would logically have an interest dependent on Virginia's 
interest. 

I have not found that the State of Virginia has ever taken formal action looking to 
an investigation or adjustment of her reserved interest in the lands ceded to the United 
States March 1, 1784. 

Very respectfully, R. B. Fulton. 

Mr. Chilton. Mr. President, the State of West Virginia would not 
have it thought that this "claim/' reserved in the cession of 1784 
and protected by two clauses of the Constitution, is an idea born of 
her troubles concerning the debt of the State of Virginia referred to 
in the first constitution of West Virginia. The suit between the two 
States grv>wing out of that debt is now pending in the wSupreme Court 
and will proceed in an orderly manner. West Virginia will meet 
her just obligations, whether the Federal Government shall be com- 
pelled to settle the trusteeship created by the Virginia cession or not. 
But it need not be denied that the proceedings in the suit which I 
have mentioned have been disappointing to West Virginia, and if 
she be compelled to pay a large sum of money to Virginia she will 
look upon it as a hardship. But, by the same rule which would liokl 
her liable for Virginia's debt, she would be entitled to the funds 
accruing to Virginia prior to the division of the State. If territory 
or population be a basis for apportioning obligations, it is also a basis 
for a division of assets. If West Virginia shall, in the end, have any 
part of the Virginia debt to pay she will need her share of the trust 



STATE CLAIMS FOR NORTHWEST TERRITORY. 23 

funds now in the hands of the Federal Government; if she be not 
required to respond, then her share of that fund is none the less the 
heritage of the two Viro:inias. 

There is a court ]>rovided by law in wliich anyone luiving a claim 
afjainst the Government can litigate it. All sorts of claims of Indians 
and citizens, Indian tribes, and cor])orations are settled in this 
tribunal. The Government denies justice to none. It was in response 
to the demand that this Government shall be just to everyone that the 
Court of Claims was created. But shall it be said that the Govern- 
ment will deny to any State the same justice which she grants to all 
the world besides ? 

It can not, then, be conceived that the Government will make 
Virginia and West Virginia, whose bounty she accepted in times 
when she was in sore straits, and the other beneficiaries under an 
express trust, the only exceptions to the rule that no creditor shall, 
be denied a hearing in a court of justice. A hearing is all that is 
asked. The States interested will accept the decision of the courts 
of the United States upon the construction to be placed upon the 
cession and upon every matter involved in the claim. Congress is 
not called upon to take any position upon the merits of the contro- 
versy. It would be an arbitrary course for any alleged trustee to 
deny the trust and refuse the beneficiaries an opportunity to estab- 
lish it; but under the peculiar relations occupied by the Government, 
under the facts which I have' outlined, it would be unspeakably arbi- 
trary, unfair, and unwise to refuse a sovereign State the poor boon of 
a fair and unpartial hearing in a court of justice. 

This bill makes no appropriation, recites no facts, and assumes no 
position upon the title papers or upon the acts of any of the parties. 
The Government's liability can not be fixed until the last word shall 
be said by the Supreme Court. The States interested ask for no 
favors, but they do demand justice. I thank the Senator from Wash- 
ington [Mr. Jones] for his courtesy m yielding to me. 

An Address of Gov. Claude A. Swanson on ''Virginia Day," 
Delivered at the Jamestown Exposition, Jltne 12, 1907. 

Ladies and gentlemen: 

The Commonwealth of Virginia and the Republic, the United 
States of America, have united to celebrate this the third century of 
their beginning. Jamestown is the joint cradle of this State and 
this Nation. Thus, as we participate in these commemorative exer- 
cises, our hearts flame alike with State and with National. ])atriotism. 

This day of the exposition has been designated as "Virginia Day." 
To-day the children and the descendants of the children of Virginia 
gather at this birthday party to pa}^ loyal, loving devotion to their 
glorious mother for her 300 years of brave endeavor and splendid 
achievement. Virginia extends to all of you a cordial, warm, and 
loving welcome. To her children who have come from afar she gives 
her blessings and benedictions. She places her loving hands on their 
heads and wishes them all measure of prosperity and happiness. 
She salutes her many fair daughters in statehood with maternal 
pride and joy, she rejoices at their bright career, and feels that their 
glories add to her a deeper majesty. To her sister States, who so 



24 STATE CLAIMS FOR NORTHWEST TERRITORY. 

generously rejoice and celebra,te with her, she gives an affectionate 
greeting, while she thrills anew with that love which cements them 
and her into a perpetual union. To her foreign friends and nations 
who have graced this occasion by their presence and approval she 
extends the hand of true friendship and hospitality. To this Nation, 
to whose growth and power she has made such vast contributions, 
her heart goes out in an abounding and abiding love. 

Virginia! Thy very name, like that of wScotland, England, France, 
Greece, and Rome, has a distinct and individual meaning, bringing 
to the mind scenes of natural loveliness and visions of sacrifice, suf- 
fering, heroism, and glory, which will encircle thee with a deathless 
renown. Bounded by hi^h mountain and majestic ocean, decorated 
with hill, plain, and valley, threaded by beautiful broad rivers, 
kissed by sunshine and radiant with warmth, nature designed thee 
as the fit abode of a joyous and chivalric, courageous, and lofty 
people. Virginia furnished a magnificent and suitable stage for the 
cavalier to unfold the drama of his new destiny. Here man and 
nature were found in perfect harmony. Here brave people and beau- 
tiful country combmed to create a history so resplendent with genius 
and grandeur as to make this CommoRwealth illustrious the world 
over. Soft and sweet as the memories of buried love will ever lie in 
our hearts the old colonial homes and plantations of Virgmia, embow- 
ered in forests, shrubbery, and flowers, bright with joyous romantic 
life, ruled by superb women and noble men. The history of the Old 
Virginia from Jamestown to Appomattox is the history of a great 
and glorious people, ever to be noted in story and in song. No 
people, no civilization in the same length of time ever accomplished 
so much for the betterment of mankind or produced so many eminent 
men, who will be numbered forever among the immortals. Her history 
is replete with great deeds and great names. 

The two most important rights of modern times are the trial by 
jury and legislative government. Within Virginia was impaneled the 
first jury that ever administered justice in the Western Hemisphere. 
Here in the New World was first exercised and firmly established that 
precious heritage of the Anglo-Saxon, which has been the chief source 
of his liberty and his main protection against oppression and despot- 
ism. At Jamestown, on the 30th of July, 1619, assembled the House 
of Burgesses of Virginia, the first legislative body that ever sat or 
enacted laws in America. This was the first parliamentary body of 
the world composed of members from designated boroughs and elected 
by universal sutlrages. In the modest wooden cluirch at Jamestown 
Was first exercised the great })rinciple that government should be the 
expre.'^sionof the will of the masses of the people. The birth of free 
representative government in Virginia was coeval with its destruction 
elsewhere. James I had deprived Parliament of its power and ])rivi- 
leges, dissolved it, not to be convened for seven years. The Spanish 
Kmg had destroyed the National Cortez, and his will was the suj)reme 
law of Spain. The States General of France was di^^solved, not to be 
called until 1789, on the eve of the French Revolution. The only 
place free from arbitrary power and despotism was the small colony of 
Virginia fringing the Atlantic coast. Liberty had no refuge save in 
the forests of Virginia. Right valiantly did the brave cavaliers of 
Virginia preserve the sacred fire intrusted to their keeping. In 1624, 
without a dissenting voice, the house of burgesses enacted that no 



STATE CLAIMS FOE NORTHWEST TERRITORY. 25 

taxes should bo levied within the colony antl no money appropriated 
except by its authority. This bold declaration was made years before 
the same was asserted by the British ParJiani(>nt atjaiiist Cliarles I. 
This princii)le that taxation is a gift of the citizens, (h'pendent on 
their consent, and not a prerogative to be exercised by rulers, is the 
veryfounchition of all free government. This is the right forwhich we 
contended a century and a half later in the Revolutionary War. The 
germ of free institutions was first planted and nourished' in the soil of 
Virginia. Protected by brave, loving hands, refreshed by heroic 
blood, it was strengthened, has grown. and fructified until now it over- 
spreads the world. The people of Virginia, through their elected 
representatives levied and appropriated all taxes, declared war or 
made peace, guarded their own forts, furnished and commanded their 
own troo])s, and practically exercised all the functions of government. 
In 1G29 Virginia made another firm assertion of her privileges and 
rights. Charles I presented a flattering oii'er to the colony to give 
him a monopoly of their tobacco. The assembly vigorously pro- 
tested against the monopoly, and decisively rejected the proposal. 
Charles acquiesced in this refusal, and this King, who had ruthlessly 
monopolized the trades and industries of England to obtabi money, 
dared not to extend his despoiling hand to Virginia. Later, Charles 
received a bolder and more dangerous defiance. He sent his commis- 
sioners to inquire mto the affairs of Virginia, and demanded the })ublic 
records of the colony. The assembly refused, insisting that the 
records were not for the inspection of the King or liis commissioners. 
The commissioners finall}^ induced ISharpless, the clerk, to furnish 
them a copy of the records, whereupon the assembly c/)n(hMnned 
Sharpless to stand in the pillory and have the half of one of his ears 
cut oft". Here was the legislative assembly of an infant colony that 
knew its privileges and rights, and dared to maintain them against all 
aggressors and at all hazards. Even thus early, the torch of liberty 
illumined the woods of Virginia. On the 28th of A})ril, 1625, the 
people of Virginia, still more resolutely asserted their rights. On that 
day the house of burgesses removed the royal governor. Sir John 
Harvey, from liis office on account of misconduct and exercise of 
illegal powers, and elected Capt. John West as governor in his ])lace. 
This preceded by 3'ears the deposition of Charles I by the British Par- 
liament. The colony of Virginia led the mother country in opposition 
to tyranny and oppression, and in bold maintenance of the rigiits and 
liberty of Englishmen. This was the first revolutionary act in 
America; the first warning given to the kings of the Old World that 
their unworthy and arbitrary deputies in the new would encounter 
resistance and receive capitation. The Virginians did not confine 
their opposition to the oppressive measures of the weak and vacillating 
Charles. They were equally as defiant of Cromwell, the most master- 
ful and resolute character of the century. After Cromwell had made 
himself absolute ruler of Britain and his iron hand had destroyed 
Parliament itself, he sent his ships and commissioners to subdue the 
colony of Virginia, which still loyally adhered to the fortunes of the 
ill-starred House of Stuart. Virginia armed to resist, and the com- 
missioners could only prevent war by maldng a solemn treaty, con- 
ceding to the people of Virginia freedom of trade eoual to that of the 
people of England, the right that taxes should be levied and appro- 
priated, affairs conducted, and the governor and all their officers 



26 STATE CLAIMS FOR NOETHWEST TEREITORY. 

elected, forts guarded, troops raised and commanded as the house of 
burgesses should direct, llntil Cromwell's death these rights were 
enjo3^ed and vast power thus exercised by the people of Virginia. 
Thus virtually it amounted to independence. When we reflect that 
these privileges were obtained from the most forceful and despotic 
ruler of his age, before whose power Europe trembled, we can form 
some conception of the resolute courage and ardent love of liberty 
possessed by the cavaliers of Virginia. 

The year 1676 was a notable one in the annals of Virginia, and 
marked an important epoch in the history of America. Then, for 
the first time, Americans, with sword in hand, rose to redress their 
wrongs, assert their rights, and reform government. Berkeley, the 
royal governor of Virginia, had arrogated to hims?lf all authority and 
power. Ha^dng secured a servile House of Burgesses, he continued 
its existence from year to year, and refused the people the right to 
elect another. He assumed the right to appoint all officers. The 
trade with the Indians, the taxes, and public lands were corruptly 
appropriated by him and his favorites. For fear of losing the profits 
of the Indian trade he would not protect the people from th? toma- 
hawk of the merciless savages. He stubbornly resisted every effort 
to correct these abuses. Inflamed by the eloquence and animated 
by the courap:? of Nathaniel Bacon, the people rose in arms, drove 
Berkeley and his adherents from Jamestown, forced them tD seek 
refug? in their ships and remote places, seized the reins of government 
and held them until the death of Bacon. History can not furnish a 
mora dramatic and inspiring scene than that at the Middle Planta- 
tion, now Williamsburg, where, on the 3d of August, 1676, the cava- 
liers of Virginia assembled, and in stormy session, extending from 
noon to midnight, finally, under tlie flickering light of torches, signed 
an agreement that they would never lay down their arms until their 
wrongs were redressed, thouirh the King of Great Britain should send 
troo])s to try to suppress them. This was the boldest, bravest act 
of tlie century. While England submitted to the corrupt and wicked 
Charles, Virginia resisted the tyrannical Berkeley and obtained the 
reforms demanded. Thus a century before were sown in the soil of 
Virginia seed that afterwards ripened into the Revolution and brought 
independence to tlie colonies. No people ever cluna: to individual 
and i:>ublic hberty more tenaciously tlian the proud and imperious 
cavaliers of Virginia. "Lib?rty or death" has ever been to all Vir- 
ginians the bugle call to battle and duty. The cavalier as he ad- 
vanced across the continent, from the Atlantic to the Great Lakes, 
from thence to the Pacific, from the Potomac to tlie Rio Grande, 
building communities and cities, founding great States, has carried 
with him a fierce love of liberty and free institutions. There is 
scarcely a Southern or Western State that has not felt th? touch of 
his masterful hand and whose social and political structures do not 
bear testimony to the greatness of his handiwork. The 100,000 
persons who emigrated and settled in Virginia have now increased 
to 5,000,000, scattered in every State of this Union. No industry, 
no genius is sufficient to make an estimate of their achievements in 
every line of human endeavor or of their gifts to national greatness 
and glory. No nation was ever adorned at one time with so many 
illustrious men as was Virginia during the Revolutionary War and 
the few years preceding and following. Neither Greece nor Rome 



STATE CLAIMS FOR NORTHWEST TERRITORY. 27 

ever possessed at once siu-li a prodigality of fjeniiis and eminence. It 
is almost impossible to conceive that a population so small could 
furnish so many distin<j:uisheil men. Towerintj; aboA^e them all was 
Washinfjjton, the foremost man of all times and of all counti-ies, whose 
sword was independence for the colonies, whose unselfish patriotism, 
strict justice, calm judgment, and great achievements isolate him 
from all others and emblazon him with a glory that is world-wide and 
eternal. Conspicuous in this shining galaxy was Jefferson, the 
immortal author of the Declaration of Independence, the boldest and 
most successful reformer of all ages; who defined the true purposes of 
government better than all others, whose party tenets have almost 
become universal, and whose wisdom jnirchased Louisiana, with its 
vast expanse of territory, and thus made possible our present national 
greatness. Within this group, luminous with learning and genius, 
stood the gentle and philosophic Madison, who M'hen the 1.3 Colonies, 
under the old Articles of Confederation, were flying into fragments 
and dissolving into anarchy, conceived the Federal Constitution, and 
thus created our present National Government, the best and w^isest 
the wit of man ever devised. Excelled by none in force and wisdom 
was resolute George Mason, the author of the Virginia Bill of Rights, 
the finest declaration of human rights ever penned, and wdiich became 
a part of the Federal Constitution and of nearly every State constitu- 
tion in the Union. He it was who wrote the constitution of Virginia, 
the first written constitution of the world for a republic and whose 
salient features appear in all others which have followed. Illumi- 
nating the skies of America with undimmed splendor was Patrick 
Henry, the forest-born Demosthenes, "who spoke as Homer w^rote," 
the greatest orator of modern times, whose burning eloquence and 
soul-stirring appeals called a continent to arms and started a revo- 
lution which shall yet encircle the globe in its onward march for relief 
and reform. Residing at Chantilly, in Westmoreland County, a 
home of surpassing beauty, was Richard Henry Lee, w^hose grace and 
elegance would have adorned any court, and whose persuasive elo- 
cjuence earned for him the title "The Cicero of the Revolution." 
He it was wiio conceived the scheme of "The Committee of Corre- 
spondence," from which sprung the union of the Colonies, with all 
the resultant benefits. ITe it was who moved on the 7th of June, in 
the Continental Congress, that these United Colonies are and ought 
to be free and independent States. 

Then attending William and Mary College, which he left to enlist 
in the Revolutionary Army, was James Monroe, who afterwards, as 
President, wdien our foreign policy was weak, vacillating, and unfixed, 
had the courage to announce the great Monroe doctrine, which 
extended our protection to the ^Vestern Hemisphere, saved it from 
foreign conquest and colonization, and dedicatecl it to liberty, which 
great doctrine he made a part of the w^orld's international law, 
and which will forever constitute the foundation of our foreign 
policy. Serving as a private in the Revolutionary War was John 
Marshall, the greatest jurist of modern times, and who afterwards, 
as Chief Justice, by his great decisions so invigorated and strength- 
ened the Federal Government as to make it one of the most efficient 
and capable in the world. A\ iekling a vast influence was Edmund 
Pendleton, whose manh' beauty, clear voice, integrity, and })iety 
made him the pride of the conservative element of cavaliers. He 



28 STATE CLAIMS FOR NORTHWEST TERRITORY. 

was president of the committee of safet}", which marshaled the 
forces and directed the measures of resistance to Britain. He was 
acknowledged as one of the ablest debaters of his time. Scattering 
everywhere sweetness and sunshine was genial, loving George 
Wythe, whose culture, learning, and legal acquirements were an 
ornament to any State. He it was who moved on the 16th of 
February, 1776, in the Continental Congress, "that the colonies 
had a right to contract alliances with foreign powers." This was 
the first act of independence, and the means of securing aid of France, 
which was indispensable to success. Then living in Albemarle 
County was George Rogers Clark, who afterwards, with a few Vir- 
ginia troops, captured from Great Britain all that vast territory 
from the mountains to the Mississi])pi and to the Great Lakes. The 
perils and privations encountered by him and his troops hav^e 
never been surpassed. Historians concur in saying it was the most 
heroic achievement of an heroic epoch. But for the conquest made 
by this "Hannibal of the West" the boundaries of the United States 
would have been limited to the territory fringing the Atlantic coast. 
Few victories have ever produced such far-reaching results as his. 
In the beautiful Valley of Virginia was brave, daring Daniel Morgan, 
who Bancroft says was ''the greatest commander of light troops 
of the world." His rapid march with liis Virginia riflemen from 
Winchester to the relief of Boston within 21 days startled and stirred 
the country. He, with his Virginia troops, was the first commander 
to successfully resist Burgoyne's army, and to him and them belong 
the chief glory of Saratoga. Pie, sustained by his brave Virginia 
riflemen, won the battle of Cowpens, acknowledged as the most 
astonishing and brilliant victory of the war. In superb southwest 
Virginia was stern William Campbell, who commanded and won 
the battle of Kings Mountain, which victory made possible the 
final triumph at Yorktown. At Stratford, in Westmoreland County, 
lived Light Horse Harry Lee, who became the Rupert of the Revo- 
lution, the most gallant and dashing cavalryman that ever drew 
saber. Surrounding -these great luminaries were lesser lights, yet 
whose brilliance was sufficient to make resplendent any State. 
Among these was grim, determined Archibald Cary, of Ampthill, 
called "Old Iron"; scholarly Richard Bland; the brave, gallant 
Thomas Nelson, who at the battle of Yorktown directed the troops 
to fire at his own home; pious, patriotic John Page; Edmund Ran- 
dolph, learned, eloquent, and able, the first Attorney General of 
the United States, and also Secretary of State; Peyton Randolph, 
first president of the Continental Congress; Meriweather Lewis, 
whose wonderful explorations from the Mississippi to the Pacific 
gave to this Nation, through discovery, that lovely stretch of country 
embracing Oregon, Washington, and other magnificent States. 

Sirs, eliminate the achievements of these men and you will nearly 
unwrite the history of America. These were the brains that con- 
ceived; these were the hands that constructed our national system 
and formed the foundation upon which have been builded American 
greatness and glory. Virginia, many and valuable have been your 
gifts to this Nation; great is your title to distinction and immortality. 
Within your border was erected the first church in this Nation; was 
built the first furnace; was foundeil the first free school. It was you 
who first challenged France on this continent. Your house of bur- 



STATE CLAIMS FOR NORTHWEST TERRITORY. 29 

gesses was the first assembly of the Colonies to remonstrate against 
the tyranny of the British Parliament and assert American rights. 
You were the first to pass a resolution for armed resistance against 
British j)owei-. Your convention was the first to declare for freedom 
and independence unconditionally, and tiuis you became the first 
Republic of the western woild. The in(U'i)endencc of all the Colo- 
nies was moved in the Continental Congress in your name, through 
instructions given to your delegates. To allay colonial jealousies 
din-ing the Revolutionary War you generously conceded the territo- 
rial claims of all the other Colonies. To cement the States into a Union 
you gave to the Nation a large territory, "an empire in vastness and 
richness, which was yours by charter and conquest. It was you 
who called the convention which prepared the Federal Constitution. 
To you belongs the honor of being the first to condemn and prohibit 
the infamous slave trade. It was your wisdom and foresight which 
saved the Northwestern Territory from slavery, which act was the 
most controlling of all causes which led to its final destruction. 
That rich and large stretch of territor}^, embracing Texas and Cali- 
fornia, is a part of this Nation is due to the policy of vour distinguished 
son. President Tyler, and the victories of your illustrious soldiers, 
Scott and Taylor. The first blood shed in the Revolutionary War 
was on 3'our western border in conflict with the Indians, incited by 
Britain. The last, final blow that destroyed British power in Amer- 
ica was delivered on your soil at Yorktown. The first ironclad vessel, 
which revolutionized the navies of the world, was built and fought 
within your waters. During the late war between the States your 
soil was the seat of the most prolonged and terrific war of all ages 
and of all countries. Within five years more than 600 battles were 
fought within your borders. There is scarcely a hilltop, stream, or 
village within your limits which has not become historical from its asso- 
ciation with some daring deed of valor or splendid display of military 
genius or prowess. Virginia, your history from Bethel to Appomattox 
gleams with a glory that has brought to you a renown which is imper- 
ishable. You gave the world its most daring exhibition of disciplined 
valor, when, amid storm of shell and shot, Pickett charged the heights 
of Gettysburg, and by a baptism of blood and death showed the glorious 
stuff of which Virginians were made. The lurid light of that charge 
will shine to remotest time. You furnished to that conflict the 
dashing cavalryman, gallant Turner Ashby, who, on his milk-white 
steed, his drawn sword in hand, his face ablaze with the enthusiasm 
of battle, will live as long as gallantry, patriotism, and chivalry are 
cherished. You then gave to the world its greatest Cavalry 
leader, who revolutionized the use of Cavalry — blue-eyed, flaxen- 
haired Jeb Stuart, "boisterous as March, fresh as May," who rode 
and fought like a mighty Saxon king. You produced the best corps 
commander of his age, A. P. Hill, and the best tactician of his time, 
Joseph E. Johnston. Then you gave to the world that silent, stern, 
mysterious figure, Stonewall Jackson, the great thunderbolt of war, 
whose unflinching courage, resolute will, rapidity of movement, bold- 
ness and brilliance of conception, made a military genius second only 
to Lee and Napoleon, the two great gods of war. Then, seeming as 
if desirous of reaching a climax in your rich gifts, you gave to the 
world Robert E. Lee, whose princely bearing, knightly courtesy, 
Christian devotion to duty, brave heart, superl) intellect, and amaz- 



30 STATE CLAIMS FOR NORTHWEST TERRITORY. 

ing genius, formed a character without a peer, and who will ever 
shine as thQ brightest star in the galaxy of Anglo-Saxon greatness. 

Sirs, so varied and valuable have been the achievements of Vii*- 
ginia that numerous titles of distinction have been awarded her. 
On account of her faithful loyalty to the fortunes of an ill-fated prince, 
she is called "The Old Dominion"; measured by the many beautiful 
daughters she has given to the sisterhood of States, she is called 
"The Mother of States"; grateful for the seven great Presidents she 
has furnished to govern this Nation, she is "called "The Mother of 
Presidents"; the heroism, sacrifice, and fidelity with which she clung 
to the fortunes of the ill-starred Confederacy in its darkest hours 
gave her the name of "The Unterrified Commonwealth." 

Well can Virginia this year stand on an eminence that overlooks 300 
years of endeavor and proudly survey the pathway she has traveled. 
In her sojourn she has met perils which she has bravely overcome, 
encountered misfortunes of which she made no complaint, proudly 
bore in silence and finally conquered. She has seen many wars and 
fierce conflicts involving her rights to which, with reckless profusion, 
she sent her noblest sons, whose valor and military genius have encir- 
cled her brow with an unfading luster. In every part of national life 
and endeavor she has furnished illustrious sons, the splendors of whose 
fame are immortal. In the plentitude of her prosperity and power 
she generously gave to the Union when it was weak and poor. When 
in the hours of her sorrow and distress the Union ruthlessly tore from 
her one-third of her territory, with proud disdain, but not despair, she 
submitted, and commenced at once to make better and richer her 
lessened domain. Sirs, the great sculptor Michael Angelo has well 
said, "The more the marble wastes, the more the statue grows." 
With equal truth it can be said that though Virginia has been reduced 
in power and territory, yet, on account of what has been chiseled away 
by her generosity and patriotism, has been created a figure of beauty, 
majesty, and grandeur surpassing any mass of marble that ever cum- 
bered mountain side. 

Sirs, in conclusion, while we survey with pride Virginia's superb 
past, let us face the future with hope and confidence. Never were 
the skies of Virginia illumined with brighter prospects. Every sec- 
tion of the State is thrilling with a marvelous industrial development, 
blessed with an amazing increase of wealth. In every direction Vir- 
ginia is making a rapid and permanent advance. The future beckons 
her to a higher, nobler destiny. Chastened by misfortune, made 
patient by long sufl'ering, brave by burdens borne and overcome, 
stirred by the possibilities of an industrial development and wealth 
almost unspeakable, cherishing to a passion the teachings of her illus- 
trious dead from Washington to Lee, Virginia presents a combination 
of strength and sentiment destined to make her again the wise leader 
in this Nation of political thought and national achievement. Young 
men of Virginia, the clock of opportunity strikes our hour of work 
and responsibility. Lot us, animated by a patriotism that is national 
stirred by the possibilities of our State, which point to a greater future, 
resolve to answer all demands made upon us by our beloved State 
and common country and to aid this glorious Commonwealth and this 
mighty Republic to advance along the pathway of justice, liberty, 
and progress. 

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